Update: Class Action Claims Colonial Marines Falsely Advertised

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Update: Class Action Claims Colonial Marines Falsely Advertised

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"We think the video game industry is no different than any other that deals with consumers," says the plaintiff's representative, Edelson LLC.

Sega and Gearbox have been targeted in a class action suit, taken up by legal firm Edelson LLC on behalf of Damion Perrine, alleging that Aliens: Colonial Marines was falsely advertised by showing demos which bore very little relation to the final product. The suit argues that, because of the press embargo that only lifted on the game's February 12th launch, those who bought early or pre-ordered would have had no idea that significant discrepancies between the demo and final game existed.

"Each of the 'actual gameplay' demonstrations purported to show consumers exactly what they would be buying: a cutting edge video game with very specific features and qualities," the claim states; but, as we know now, that wasn't entirely so. The class action cites a specific Tweet by Randy Pitchford, Gearbox head, in which Pitchford seems to acknowledge that differences existed and were significant. "That is understood and fair" Tweeted Pitchford, in response to a statement by a fan, who argued that the people just wanted an explanation as to why the game was so different from the demo. "We are looking at that," Pitchford went on to say. "Lots of info to parse, lots of stake holders to respect."

Edelson LLC, the firm representing Perrine, argues that the video game industry is no different from any other industry that deals with consumers. "If companies like Sega and Gearbox promise their customers one thing but deliver something else," said Edelson's Ben Thomassen to Polygon, "then they should be held accountable for that decision." This isn't the first time Edelson has delved into the game industry's murkier waters. It previously acted on behalf of gamers upset over a mishandled promotion, and broken promise, concerning Battlefield 3's PS3 release. Edelson describes that case as "presently in settlement posture," but goes on to say that it continues to monitor the industry, with a view to keeping "the booming video game business honest."

Source: Polygon

Update: Sega and Gearbox have both responded to the suit.

Sega: "Sega cannot comment on specifics of ongoing litigation, but we are confident that the lawsuit is without merit and we will defend it vigorously."

Gearbox: "Attempting to wring a class action lawsuit out of a demonstration is beyond meritless. We continue to support the game, and will defend the rights of entertainers to share their works-in-progress without fear of frivolous litigation."

Source: Kotaku

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Seems legit. It was horribly falseley advertised to be fair, that trailer looked awesome and then the game is kinda.. not...

Dead horse, lets flog it some more in hopes of it being a money pinata!

To those who claim that BioShock Infinite and Kill zone 2 are guilty of the same crime you have to remember that Sony and 2K eventually showed us what those games really looked like before those games released.

Gearbox and Sega on the other hand continued to only show doctored footage.

Atary77:
To those who claim that BioShock Infinite and Kill zone 2 are guilty of the same crime you have to remember that Sony and 2K eventually showed us what those games really looked like before those games released.

Gearbox and Segacon the other hand continued to only show doctored footage.

Definitely. Aliens Colonial Marines is textbook false advertising and there isn't any way around it unless someone wants to try driving the argument through a three ring circus of circular logic, and if some defense lawyer wants to really do that I'd question their moral integrity.

I have always felt the same thing. Gaming seems to be one of the only industries where it is commonly accepted to claim your product includes features, and then not include them without saying a word. It doesn't help that if you ever complain about it then people will make accusations of entitlement or pettiness.

Although personally I'd just prefer stronger legislation being put in place in regards to advertising and promoting, rather than people making lawsuits. The problem is that the people in charge of making such rules are hopelessly out of date when it comes to such things.

I have a bad feeling that we're gonna see some entitlement claims soon. I really hope we can avoid that.

While I won't get into the A:CM press vs actual release issue, this DOES create the potential for a very, very dangerous precedence, as features change all the time in development and often what is shown in demos end up being changed around in the final.

Look at the videos of Bioshock Infinite from last year to the released game now. The original military theme of TeamFortress 2 to it's current incarnation.

What's the threshold for allowable change to not? What's preventing someone from getting hurt over a pet feature being removed from suing the studio to force them to (re)implement it, even though said studio decided it wasn't really that good a feature? Would a "Not final gameplay" subtitle in videos be enough to cover their ass?

It's the same issue that occurs when players build up a game's premise too unrealistic expectations in their mind, and the result game on release is not quite the same, so they go and review bomb it. People need to temper their expectations.

ThriKreen:
While I won't get into the A:CM press vs actual release issue, this DOES create the potential for a very, very dangerous precedence, as features change all the time in development and often what is shown in demos end up being changed around in the final.

Look at the videos of Bioshock Infinite from last year to the released game now. The original military theme of TeamFortress 2 to it's current incarnation.

What's the threshold for allowable change to not? What's preventing someone from getting hurt over a pet feature being removed from suing the studio to force them to (re)implement it, even though said studio decided it wasn't really that good a feature? Would a "Not final gameplay" subtitle in videos be enough to cover their ass?

It's the same issue that occurs when players build up a game's premise too unrealistic expectations in their mind, and the result game on release is not quite the same, so they go and review bomb it. People need to temper their expectations.

Bioshock Infinite's marketing surrounding the launch did reflect features from the game that we got in the final product. A lot did change in a year, but those changes were represented in the marketing. ACM did not do this, and launched a game without clarifying its marketing to match the changes made.

erttheking:
I have a bad feeling that we're gonna see some entitlement claims soon. I really hope we can avoid that.

Why? Those claims tell you with a big neon sign who you can safely ignore as being idiots.

I for one am thankful for the displays.

ThriKreen:
While I won't get into the A:CM press vs actual release issue, this DOES create the potential for a very, very dangerous precedence, as features change all the time in development and often what is shown in demos end up being changed around in the final.

Look at the videos of Bioshock Infinite from last year to the released game now. The original military theme of TeamFortress 2 to it's current incarnation.

What's the threshold for allowable change to not? What's preventing someone from getting hurt over a pet feature being removed from suing the studio to force them to (re)implement it, even though said studio decided it wasn't really that good a feature? Would a "Not final gameplay" subtitle in videos be enough to cover their ass?

It's the same issue that occurs when players build up a game's premise too unrealistic expectations in their mind, and the result game on release is not quite the same, so they go and review bomb it. People need to temper their expectations.

See Atary77's response

Atary77:
To those who claim that BioShock Infinite and Kill zone 2 are guilty of the same crime you have to remember that Sony and 2K eventually showed us what those games really looked like before those games released.

Gearbox and Sega on the other hand continued to only show doctored footage.

I really don't care about these false advertising claims. Yeah it sucks but oh well.

I am however FAR more interested in the accusations of misused funds (Gearbox accused of using money given by SEGA to fund Borderlands 2). That is ACTUALLY damaging actions and could result in some actual trouble for Gearbox.

ThriKreen:
While I won't get into the A:CM press vs actual release issue, this DOES create the potential for a very, very dangerous precedence, as features change all the time in development and often what is shown in demos end up being changed around in the final.

Look at the videos of Bioshock Infinite from last year to the released game now. The original military theme of TeamFortress 2 to it's current incarnation.

What's the threshold for allowable change to not? What's preventing someone from getting hurt over a pet feature being removed from suing the studio to force them to (re)implement it, even though said studio decided it wasn't really that good a feature? Would a "Not final gameplay" subtitle in videos be enough to cover their ass?

It's the same issue that occurs when players build up a game's premise too unrealistic expectations in their mind, and the result game on release is not quite the same, so they go and review bomb it. People need to temper their expectations.

There is no problem with changes being made during development. A trailer is hardly a binding legal document, after all. Features get added and removed, rewrites occur, themes shift. It happens, and devs shouldn't be punished for it. So long as they are open and upfront about it. An updated trailer, a q&a, even just a twitter post mentioning that there were some changes and linking to a list.

Anything else is just a bait and switch.

ThriKreen:
While I won't get into the A:CM press vs actual release issue, this DOES create the potential for a very, very dangerous precedence, as features change all the time in development and often what is shown in demos end up being changed around in the final.

Look at the videos of Bioshock Infinite from last year to the released game now. The original military theme of TeamFortress 2 to it's current incarnation.

What's the threshold for allowable change to not? What's preventing someone from getting hurt over a pet feature being removed from suing the studio to force them to (re)implement it, even though said studio decided it wasn't really that good a feature? Would a "Not final gameplay" subtitle in videos be enough to cover their ass?

It's the same issue that occurs when players build up a game's premise too unrealistic expectations in their mind, and the result game on release is not quite the same, so they go and review bomb it. People need to temper their expectations.

Well that is very simple. Objective Reviews (I know an oxymoron but hey) were available before date of release. Of the videos released at least one video released to the public before date of release has to accurately represents the game. Communication ahead of release of the features that WILL be present in the end product and possible planned or dropped features are optional.

When I bought Bioshock Infinite there were videos that showed me what it was, reviews that showered it with (undeserved) praise and the box described the shooter it was.

With Colonial Marines, which I thought smelled fishy so I didn't buy it. They released DELIBERATELY edited footage that they could not HOPE to ever put into a game. What they created was essentially a tech demo so unoptimized and taxing it would melt the 360. They touted features up to the day the game was released that were not present in the game.

To look at a text book example see the War Z launch. That is false advertisment.

Sure there are features missing from the gameplay demo of Bioshock Infinite, a demo which I think overshadows and sucker punches the full game with it's awesomeness, but these were never shown as actual game demo's. What Bioshock Infinite released was essentially giant trailers of possible gameplay (which I much rather they had made than this watered down piss of Call of Columbia: Multiverse at War).

ThriKreen:
snip

Isn't part of the issue that the press embargo was not lifted until release date? If reviews would've been out to inform people about the major differences between showed demos and the actual game they would've less of a case on basis that games change during time of development so a months old demo is not representative anymore.

ThriKreen:
While I won't get into the A:CM press vs actual release issue, this DOES create the potential for a very, very dangerous precedence, as features change all the time in development and often what is shown in demos end up being changed around in the final.

Not really, Sega/Gearbox put out review code early then imposed a non-disclosure agreement to make sure nobody could say how awful it was until after release, whilst at the same time releasing bags of marketing material that can be kindly described as heavily edited.

That's shady, very shady. Compared to Killzone 2 it's really shady. KZ2 had that one pre-rendered trailer in the PS3 promo video, but by the time it came out there was masses of actual gameplay footage and in-engine trailers kicking around. There were even promo vs actual comparisons before release day. Sony also didn't put a gag on any of the press pointing out what was different.

As a gamer and also a big Aliens fan, I do feel some accountability needs to be brought to light as to exactly what happened during this game's production. Everything we know so far is still just conjecture, and blame as to who did what and who made the decisions is being thrown left and right.

A lot of games strip features before release; a big example I can think of is the Hydra creature from Half Life 2, which had entire levels built around it that were eventually scrapped. But you can't show a video that states "Actual Gameplay" and then go back on that without revealing it publicly first.

This is why even for high profile games like Bioshock Infinite I wait until for at least one or two reviews before buying.

ThriKreen:
While I won't get into the A:CM press vs actual release issue, this DOES create the potential for a very, very dangerous precedence, as features change all the time in development and often what is shown in demos end up being changed around in the final.

I think others slightly misunderstood your point but I get what you mean. The issue is not that Bioshock Infinte was changed, but rather in the future this could be seen as false advertising, based on the precedent of AC:M. Which, while not exactly true, may be true enough to hold up in court. There are a lot of time when consumers are acting...not smart. Sometimes legitimately, other times "just because". It doesn't take much for somebody to go "Hurr, I saw THIS video from a years and a half ago and preordered, only to find that now the gun is a different shade of purple. I WANT MY MONEY BACK, YOU CHEATERS!" - OK that's a slight exaggeration but it's not like it cannot happen. Heck, something sort of similar did happen - there was a thread where somebody was upset after getting the game and it not holding up to a video from more than a year before.

It is a dangerous situation. I suppose there are roughly two paths to try and avoid it - 1. don't show anything until the game is almost done 2. only allow preorders if it's almost done and there is material showing the current state of the game and heavily lace every material released before with "NOT THE FINAL PRODUCT!".

So then can I sue BioWare for the Dragon Age: Origins trailer than made the bland and boring piece of trash look awesome and fun?

I guess I should start making class action lawsuits against movie trailers for including scenes that aren't in the actual film.

Doesn't this kinda go with Mass Effect 3? I remember people wanting to sue because it was marketed as a game where all your choices had impact to the story.

Well, I actually am glad to see this happen. I hope it sets a precedent. That game companies have to start showing real gameplay footage and screenshots rather than prettied up versions.

Hopefully someone gives Irrational one for as well, considering they did the same damn thing with a bullshit trailer for Infinite.

Well it does make sense here. There was a lot of -gameplay- in the trailers that was nothing like what showed up in the final product. That's to be expected, but to the extent that it happened? No. Not ok.

ThriKreen:
While I won't get into the A:CM press vs actual release issue, this DOES create the potential for a very, very dangerous precedence, as features change all the time in development and often what is shown in demos end up being changed around in the final.

Look at the videos of Bioshock Infinite from last year to the released game now. The original military theme of TeamFortress 2 to it's current incarnation.

What's the threshold for allowable change to not? What's preventing someone from getting hurt over a pet feature being removed from suing the studio to force them to (re)implement it, even though said studio decided it wasn't really that good a feature? Would a "Not final gameplay" subtitle in videos be enough to cover their ass?

It's the same issue that occurs when players build up a game's premise too unrealistic expectations in their mind, and the result game on release is not quite the same, so they go and review bomb it. People need to temper their expectations.

As other people have pointed out, you're looking for a slippery slope where none exists. This wasn't a case of a company changing a game multiple times from when it began development to release and releasing updated trailers and previews. This was a case of a company flat out lying to the public right up until it was released and gagging the media so they couldn't say anything until after the game was out. They deliberately misled people and rather than coming clean that the final game wasn't going to live up to the expectation they did everything they could to keep up the charade in the name of not losing pre-orders and week one sales. They quite literally defrauded people.

No one could say that between the original screenshots of TF2 and its release that people weren't well aware of the change in style. No one can claim that between the trailers of Bioshock Infinite early on and now there weren't plenty of actual trailers and hands on previews and reviews around and at release. There is no worrying precedent being set here. There is only consumers exercising their rights to sue a company that legitimately defrauded them. If anything, it would set a far more troubling precedent if consumers did nothing, or if the courts end up dismissing the suit or ruling in favour of the companies in question.

I really like that Pitchford is taking this seriously, I can only imagine EA/Activision trying to dismiss it or whatever, but I am firmly on the "worrying precedent" side of this.

I realise much changed from the trailer to the game (nearly all for the worse), but I also thought it was fairly well known that demos and trailers are always rosy-coloured looks at what might be, as they are made while the game is in development. Where does taking advertising with a grain of salt end and false advertising begin?

Atary77:
To those who claim that BioShock Infinite and Kill zone 2 are guilty of the same crime you have to remember that Sony and 2K eventually showed us what those games really looked like before those games released.

Gearbox and Sega on the other hand continued to only show doctored footage.

IMHO the game footage looked crap beforehand.

I created the Colonial marines thread on WP years ago, then saw the first trailer, and abandoned ship as the AI clearly wasn't turned on and when reporters started running through the levels the game was an obvious piece of turd. One spot in particular had a marine gunning down 12 aliens that just beelined down the corridor at the player as they stood there with a smartgun just picking them off so boringly.

Let alone they promised noHUD.

If you were too dumb to see otherwise then that's your bad luck as reporters were showing the crap beforehand even if that first trailer somehow appeared 'good' to anyone. Unfortunately I can't find the video anymore, but I posted about it on GON, and now 'aliens colonial marines gameplay' brings up legions of walkthroughs instead of the truth that was shouted from rooftops before release.

Lawyer glut. I don't like the idea that if a game isn't terrific, we should litigatee. I mean, I buy games that I lose interest in all the time. Often, they are some of the most popular games out there. That doesn't mean I demand my money back from gamespot becaus they gave MGSIV a ten star rating for what was effectively a bad movie with bits of gameplay tacked on. It just means I don't trust gamespot reviews any more. There is a natural correcting mechanism in place for this kind of thing and the market fulfills that role well. Why do we need lawyers involved? So we can pay lawyers more money?

This has nothing to do with the game being falsely advertised. This has to do with Damion Perrine (the gamer) being an ass and wanting to see some money, instead of seeking justice. Which is the case with 99% of these kinds of lawsuits.

Also, (blindly) pre-ordering games has its risks. And you know damn well what you are getting yourself into.

The one for Mass Effect 3 was idiotic(as proved by the court), but this one actually seems fairly legit.

After watching that video Based Jim did, the trailer had NOTHING to do with the finished product.

I just hope this doesn't start happening for every game people don't like.

Good, take 'em to the cleaners. This sort of shady business dealing needs to be ruthlessly squashed.

Legion:
I have always felt the same thing. Gaming seems to be one of the only industries where it is commonly accepted to claim your product includes features, and then not include them without saying a word. It doesn't help that if you ever complain about it then people will make accusations of entitlement or pettiness.

I don't know. These days people get yelled at and called "entitled" for complaining about just about any product. Though I do agree it's worse in gaming.

ThriKreen:
While I won't get into the A:CM press vs actual release issue, this DOES create the potential for a very, very dangerous precedence, as features change all the time in development and often what is shown in demos end up being changed around in the final.

They claimed the demo was a "vertical slice" of the game and promoted it as such right up to release. Most demos don't do that, unless I'm missing something. Hell, most demos I play advertise they are part of an earlier build and might not reflect the final product.

Pitchford and company seem to have stepped out to willfully deceive people. If this sets a "dangerous precedent," I have to wonder how honest the gaming industry is.

It's the same issue that occurs when players build up a game's premise too unrealistic expectations in their mind, and the result game on release is not quite the same, so they go and review bomb it. People need to temper their expectations.

It's not unreasonable to expect the game to work as advertised. It IS unreasonable to expect the game to be better than promised because of your own inflated expectations. Apples and oranges. Actually, apples and orcs.

Marik2:
Doesn't this kinda go with Mass Effect 3? I remember people wanting to sue because it was marketed as a game where all your choices had impact to the story.

It was a Better Business Bureau filing. Which was a decent idea, really.

4RM3D:
This has to do with Damion Perrine (the gamer) being an ass and wanting to see some money, instead of seeking justice. Which is the case with 99% of these kinds of lawsuits.

Are you psychic? Do you know what evil lurks in the hearts of men?

SURPRIIIIIIIISE!

That took longer than I thought....

I would like to point out to the naysayers on this suit. The effectively promised a freshly cut two inch Salmon steak and gave you a can of Tuna instead. It was not a case of different features etc it was a case of different ENGINE, and not in the upgrade way either. Even the damn box art on the back does not look like the game.

Vivi22:
This was a case of a company flat out lying to the public right up until it was released and gagging the media so they couldn't say anything until after the game was out.

I'm curious--was there some sort of legally-binding contract preventing any members of the press who had pre-release knowledge of the game from talking? (And, if yes, is that typical for these things?)

I'm surprised the UK Advertising Standards ruling hasn't popped up yet:

http://www.escapistmagazine.com/news/view/123059-Sega-Admits-to-Inaccurate-Aliens-Colonial-Marines-Trailer

Seems that (in the UK at least) Sega has already been found wanting by a relevant governing body. Wether this will come into play in te lawsuit is another matter however.

ThriKreen:
While I won't get into the A:CM press vs actual release issue, this DOES create the potential for a very, very dangerous precedence, as features change all the time in development and often what is shown in demos end up being changed around in the final.

Would a "Not final gameplay" subtitle in videos be enough to cover their ass?

Legally yes informing your customers that what you are seeing is not necessarily the final product would be enough to protect them.

Right now game companies are happy to show amazing footage even if they have 0 intention of including it in the final product but misleading customers that it is and that is a horrible practice that needs to be dealt with for the exact reason every one was yelling about during the whole CM debacle.

I think the debate and holding game companies accountable with transparency in game development is a great thing. If they take an essential ADVERTISED part of the game they need to let us know that they did, why they did, and what the product looks like now.

I hope this sets a precedence because the gaming industry needs more consumer friendly precedences.

grigjd3:
Lawyer glut. I don't like the idea that if a game isn't terrific, we should litigatee. I mean, I buy games that I lose interest in all the time. Often, they are some of the most popular games out there. That doesn't mean I demand my money back from gamespot becaus they gave MGSIV a ten star rating for what was effectively a bad movie with bits of gameplay tacked on. It just means I don't trust gamespot reviews any more. There is a natural correcting mechanism in place for this kind of thing and the market fulfills that role well. Why do we need lawyers involved? So we can pay lawyers more money?

Let's say you bought a house. They show it to you, it's a 5 bedroom, 2 bath, but after you buy it & move in, it's suddenly 3 bedroom, 1 bath. Several rooms were an elaborate optical illusion
Would you sue?

The key point that makes this more legitimate a claim than "the game sux" is that they claimed to be showing "in-game footage" of things that were not in the game & continued to do so until they had everyone's money. Things change in development, but what they showed to advertise the product was clearly never a part of the product to begin with. That is by definition false advertising & a crime

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